Tuesday, October 21, 2008

The Times of India recently reported on a case before the Indian High Court challenging Section 377 of the Indian penal code criminalizing sodomy and the like. To bolster its case, the Indian government has asserted arguments long popular before U.S. courts of a generation ago: (1) that homosexuality is a disease, (2) that Indian society as a whole disapproves of homosexuality and that consensus ought to be enough to support its criminalization, (3) that sexual acts between same sex individuals is immoral, a social vice a means of spreading disease and an agent of moral degradation, (4) same sex acts are against the order of nature, (5) that legalization of homosexuality would divide the country and cause social unrest, and (6) that legalization would lead to changes in marriage and divorce laws. The government is also using the case for strengthening its arguments for a broad view of parliamentary supremacy (that acts of Parliament, representing the will of the people cannot be reviewed by or set aside by any court). Lastly, the government is using the case to limit the use of transnational legal and human rights standards, arguing that constitutional norms in India ought to be made by reference solely to Indian traditions. "Our constitution does not talk about sexual orientation. We cannot impose other countries' constitutions on us. Our moral and ethical values are different." Homosexuality Not a Disease: HC, The Times of India, Mumbai Oct. 21, 2008 at A-11 (Times/Nation Section) (quoting Solicitor General P.P. Malhotra).

Thursday, October 2, 2008

For a little relief from the election rhetoric and to get a sense of your own political orientation you might find the self test for your political compass interesting. To access the test go to the following site of the political compass.

Thursday, September 25, 2008

Intersectionality analysis serves as a reminder of complexity in even the most seemingly straightforward issues. This is particularly the case among communities that share a sense of oppression or subordination but perhaps little else. It is also a complicating factor when the issue involves communities that share some of the characteristics of subordinated and some of the characteristics of subordinated communities. That appears to be the case with respect to same sex marriage in California. A recent New York Times article highlighted the tension within two politically progressive communities joined in the struggle against subordination but separated by a difference in understanding of what ought to be privileged and what not in the greater struggle. See Jesse McKinley, Same Sex Marriage Ban is Tied to Obama Factor, New York Times, September 21, 2008, at A-18.. But the issue is complicated. While the African American community appears to be partial to a particular perspective in California, some leaders of the African American community in Georgia have seen things differently. See Andrew Jacobs, Black Legislators Stall Marriage Amendment in Georgia, New York Times, March 3, 2004. The politics of inrtersecitonality will find a valuable laboratory in the coming weeks in California.

Tuesday, September 23, 2008

New in the Library:Dishonorable Passions, by William N. Eskridge, Jr. (KF9328.S6 E84 2008 at Classified Stacks). The publisher's description:

From the Pentagon to the wedding chapel, there are few issues more controversial today than gay rights. As William Eskridge persuasively demonstrates in Dishonorable Passions, there is nothing new about this political and legal obsession. The American colonies and the early states prohibited sodomy as the “crime against nature,” but rarely punished such conduct if it took place behind closed doors. By the twentieth century, America’s emerging regulatory state targeted “degenerates” and (later) “homosexuals.” The witch hunts of the McCarthy era caught very few Communists but ruined the lives of thousands of homosexuals. The nation’s sexual revolution of the 1960s fueled a social movement of people seeking repeal of sodomy laws, but it was not until the Supreme Court’s decision in Lawrence v. Texas (2003) that private sex between consenting adults was decriminalized. With dramatic stories of both the hunted (Walt Whitman and Margaret Mead) and the hunters (Earl Warren and J. Edgar Hoover), Dishonorable Passions reveals how American sodomy laws affected the lives of both homosexual and heterosexual Americans. Certain to provoke heated debate, Dishonorable Passions is a must-read for anyone interested in the history of sexuality and its regulation in the United States.

Tuesday, June 17, 2008

While some Americans are celebrating the actions of the California Supreme Court invalidating prohibitions against gay marriage in California, sexual non conformists in oher parts of the world are slowly gaining rights and recognitions that the LGBT community in this country sometimes takes for granted. In Cuba, a country in which the ruling ideology, while usually characterized as "leftist" in matters of economic policy and fairly prissy in matters of sexual politics, it is telling that the government of Raul Castro has recently approved sex change operations for transsexuals. For a report (in Spanish), see Cuba autoriza la operación de cambio de sexo, La Nación (arg.) June 6, 2008). It is now clear that there will be significant changes within Cuba in the coming months. Not only is Raul Castrio to shed the nation of its Stalinist organization and approch to economic policy in favor of Deng Xiaoping engagement with globalization, but it seems that he will be much more progressive when it comes to issues of sexual politics. How much more liberal, of course, remains to be seen. This is certainly a step in a direction that would have been impossible under the rule of his brother. And more may be on the way.

Id. (transliteration: "With the support of her father and the ideological and cultural departments of the ruling Communist Party, Mariela Castro, daughter of the new Cuban leader from the middle of May headed a national campaign agabnist homophobia that was meant to shake the foundaitonal Cuban machismo privileged during the last five centuries"). Id.

In brief, all three judges on the panel found the policy to be constitutionally infirm.

The plaintiff raised both substantive due process and equal protection claims.

The two judges writing in the majority held as follows:

(1) Substantive due process claim: The judges concluded that Lawrence v. Texas requires heightened (intermediate) scrutiny of the law because it infringes on a fundamental right. Under that standard, as articulated by the judges, the law must (a) significantly further (b) an important governmental interest; and (c) the law must be necessary to further that interest, with no less intrusive means available that would further the interest. The analysis is to be done on an as-applied basis to each person impacted by the policy.

(2) Equal protection claim: The judges concluded that such a claim is subject only to rational basis scrutiny and that it survives such scrutiny (based on prior precedent in the Circuit).

The third judge would go further, holding as follows:

(1) Substantive due process claim: He would apply strict scrutiny.

(2) Equal protection claim: He would apply strict scrutiny, for two different reasons: (a) that gays and lesbians are a suspect class; and (b) the statute impinges on a fundamental right.

Thursday, May 15, 2008

(1) The Court held that it violates the California constitution to allow opposite-sex but not same-sex couples to marry, applying strict scrutiny for three different reasons:

(a) A fundamental right is involved (right to marry) under the due process and privacy clauses of the California constitution

(b) Sexual orientation discrimination is involved. Court holds that such discrimination is, like race and gender discrimination, subject to strict scrutiny under California's equal protection clause. Court further holds that you don't need to show current political powerlessness, nor do you need to show immutability.

(c) Fundamental right prong of California's equal protection clause

(2) The court held that it is unconstitutional to have a parallel scheme of"domestic partnerships." It leaves open the possibility that the legislature could change the name of "marriage" for everyone so that everyone gets a domestic partnership."

Wednesday, May 7, 2008

In a 5-2 decision, the Michigan Supreme Court has held that the state's constitutional amendment providing that "the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose" prohibits public employers in Michigan from providing health-insurance benefits to their employees' same-sex domestic partners.

Monday, May 5, 2008

Mildred Loving, who along with her husband fought Virginia's anti-miscegenation statute all the way to the U.S. Supreme Court in Loving v. Virginia, has died.

The following statement, released by Mrs. Loving last year, on the 40th anniversary of Loving v. Virginia, tells you all you need to know about this remarkable woman:

Loving for All

By Mildred Loving

Prepared for Delivery on June 12, 2007,The 40th Anniversary of the Loving vs. Virginia Announcement

When my late husband, Richard, and I got married in Washington, DC in 1958, it wasn’t to make a political statement or start a fight. We were in love, and we wanted to be married.

We didn’t get married in Washington because we wanted to marry there. We did it there because the government wouldn’t allow us to marry back home in Virginia where we grew up, where we met, where we fell in love, and where we wanted to be together and build our family. You see, I am a woman of color and Richard was white, and at that time people believed it was okay to keep us from marrying because of their ideas of who should marry whom.

When Richard and I came back to our home in Virginia, happily married, we had no intention of battling over the law. We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn’t that what marriage is?

Not long after our wedding, we were awakened in the middle of the night in our own bedroom by deputy sheriffs and actually arrested for the “crime” of marrying the wrong kind of person. Our marriage certificate was hanging on the wall above the bed. The state prosecuted Richard and me, and after we were found guilty, the judge declared: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” He sentenced us to a year in prison, but offered to suspend the sentence if we left our home in Virginia for 25 years exile.

We left, and got a lawyer. Richard and I had to fight, but still were not fighting for a cause. We were fighting for our love.

Though it turned out we had to fight, happily Richard and I didn’t have to fight alone. Thanks to groups like the ACLU and the NAACP Legal Defense & Education Fund, and so many good people around the country willing to speak up, we took our case for the freedom to marry all the way to the U.S. Supreme Court. And on June 12, 1967, the Supreme Court ruled unanimously that, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” a “basic civil right.”

My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God’s plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.

I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.

Sunday, May 4, 2008

In a decision that will likely be further reviewed, "The Tel Aviv Family Court rejected on Sunday the domestic violence suit of a man who claimed his male partner harassed him, on the grounds that according to the court's interpretation, Israeli law does not define same-sex couples as a legitimate family." Same Sex Couple Not Defined as Family, Jerusalem Post, May 4, 2008. What makes the decision interesting, and of potential relevance to law in the United States, was the basis of decision--grounded in both law and religion. The judge determined that the statute might not have been applicable. But his narrow interpretation might be open to question. More interesting was the constitutional aspect of the decision:

According to the judge, the problem lies in the wording of the law concerning the basic dignity and freedom of man. The first paragraph of the law states that human rights are to be respected according to the principles outlined in the proclamation of the state. The Declaration of Independence mandates "a Jewish state in the land of Israel that will be based on the principles of freedom, justice and peace, in the guiding light of the visions of the prophets of Israel." The prophets of Israel did not look favorably upon homosexual relationships.

Thursday, April 24, 2008

In an opinion penned by Judge Posner, the 7th Circuit has held that a school violated students' 1st Amendment rights by banning students from wearing a t-shirt that reads "Be Happy, Not Gay" (a response to day of silence t-shirts worn by gay and pro-gay students). The opinion can be found at the following link:

Friday, April 11, 2008

I was poking around some news stories and came across the following http://365gay.com/Newscon08/04/041008fla.htm.

From what I understand, essentially, gay-straight alliances in public schools are always in court fighting for recognition. however, in this case the judge dismissed the case because the named student in the case graduated the high school - so there is no case or controversy anymore. The judge refused to allow current students to be added to the suit to keep it alive. So now current students must start the suit over again. The original district court suit was filed over 2 years ago.......so what are your thoughts on this issue evading review because of mootness????

Wednesday, March 12, 2008

Americans have a lot to worry about. Not since the 1950s ave Americans been assaulted by so many threats at home an abroad. There is danger in every space available for such things. Even the insides of our heads are not safe.

Fortunately, there are any number of people ready to watch and warn of new dangers--meteorologists, newscasters, pundits, soothsayers, and now an esteemed member of the Oklahoma legislature. lA state legislator from Oklahoma has finally focused the nation's priorities correctly. It is not terrorism, nor religion (that is, religion not her own), nor even the economy or the desperate position of native peoples in Oklahoma. No, the critical issue facing the people of Oklahoma is the threat of homosexuality. From Wikipedia:

Sally Kern (born 27 November1946, Jonesboro, Arkansas) is an Oklahomastate legislator from Oklahoma City. Kern, a member of the Republican party, represents House District 84. A former teacher, she graduated from the University of Texas and East Texas State University. She is married to Steve Kern, pastor of Olivet Baptist Church. . . . . , Kern made national headlines when she stated "I honestly think [homosexuality is] the biggest threat our nation has, even more so than terrorism or Islam - which I think is a big threat, OK? Cause what's happening now is they are going after, in schools, two-year olds...And this stuff is deadly, and it’s spreading, and it will destroy our young people, it will destroy this nation." After receiving attention for the remarks, Kern said "I said nothing that was not true" and refused to apologize.

It is refreshing, I suppose, to experience "old timey" queer baiting in one of its more pristine forms. The old nostrums about gay predators have been a long time dying. Now it seems that idea is making a come back. For a discussion, see Larry Catá Backer, Inventing a ‘Homosexual’ for Constitutional Theory: Sodomy Narrative and Antipathy in U.S. and British Courts, 71 Tul. L. Rev. 529 (1996). In the old days, the idea of sexual non conformists as pied pipers was quite current. And the idea that teaching tolerance would open the door to greater acceptance of the blandishments of these Swengalis commonly accepted as part of the so called homosexual agenda. Now the old days are back again--at least in Oklahoma. Of course Representative Kern has no reason to apologize. She means every word she said. And she believes them, too. And that is the tragedy, and the threat. While many in the LGBT community have been focusing on second and third generation issues--marriage, social acceptance, etc.--the first generation issues remain quite potent. In that context, the threat of violence remains high, and the use of the state to enforce sectarian norms even higher. As Representative Kern's spouse might agree, the likely language of the contest for influence will be religious, rather than political, scientific or secular. See Larry Catá Backer, Religion and the Discursive Language of Same Sex Marriage, 30 Capital University Law Review 221 (2002).

Professor Gabilondo raises a question made possible only by technology--the consequences of being able to choose the sexual reorientation of a baby. In a world in which choices are already being made about the sex of infants to be conceived and brought to term, the question has a number of interesting eddies and ramifications.